Category Archives: Uncategorized

“DJI Phantom Blamed for Helicopter Crash”

You’ve read the news reports.

“Local and federal authorities are investigating a helicopter crash on Daniel Island, Charleston, South Carolina that reportedly was caused by a drone last Wednesday afternoon.”

“The Federal Aviation Administration confirmed Thursday that a Robinson R22 helicopter struck a tree and crash landed near the southern tip of the island around 2 p.m.”

R22-collision

There’s a serious problem with this news report. I am bothered most by the statement: “caused by a drone“. First, there’s no evidence that there was a drone and not a piece of trash blown up by the rotorwash from the helicopter. Second, panic is no excuse for the instructor pilot not being in control of the aircraft.

If the helicopter pilot said a missile flew by the aircraft, would you title the article “Missile Blamed for Helicopter Crash” ????

Pilots make evasive maneuvers for a multitude of reasons every day. I’ve seen lots of reports of traffic conflicts, wildlife on the runway, and most amazingly a turtle on the runway that caused a crash. Almost all of these become non-incidents. Occasionally the evasive maneuver results in a crash. In these cases the pilot is sometimes held accountable by the FAA for the resulting accident, at the very least violating §91.13 Careless or reckless operation. Panic is not an option.

But, if the conflict was POSSIBLY a drone, STOP THE PRESSES!

It’s also quite possible that the drone operator (assuming that it was a drone) was flying perfectly legally in an open field at low altitudes when the helicopter arrives to perform practice hovering maneuvers., also perfectly legal.  The FAA rules do say that the drone must give way to the manned aircraft. If there was a drone involved, where is the evidence that the drone was not moving away from the helicopter giving right-of-way as required when the helicopter pilot panicked and caused an accident?

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Last year, I was confident that the next shoe will drop on hobby pilots

It took a it longer than I thought it would, but Congress is getting some push from airline and helicopter associations to drop PUBLIC LAW 112–95 SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT.  Then the FAA would be free to make and enforce new rules for model aircraft.  The video on YouTube of the drone over a 737 landing at Las Vegas may be the final straw.

So, real soon after that, the FAA will, I predict, make some slight- very slight modifications to Part 107 rules to make them apply to hobby operators as well as commercial operators.  (Note that nowhere in Part 107 rules will you find the word “commercial”).  My guess is that hobby operators will be required to pass a test, probably online or with a volunteer examiner (like at a model aircraft club), and apply for a Pilot Certificate.

The FAA likes certificates- they certificate everything.  A pilot’s worst nightmare is the letter from the FAA notifying you to a pending “Certificate Action”.  In the case of a regulatory action (whether it’s the FAA, FCC, EPA or any other regulatory office), you are presumed guilty and must prove your innocence.  Do nothing and you will receive a “notice of the civil penalty” and if your offence is especially egregious, a notice of certificate action.  You can see ow the FAA handles these things here.

 

83 ft. is B.S.

“83 ft” is an erroneous reading of Causby v U.S. Army Air Corps.  (The Air Force wasn’t created until September, 1947).  US v. Causby, 328 US 256, 264 (1946) holds that a landowner owns as much of the airspace above his or her property to which he or she can reasonably use, and any invasion of that airspace is a trespass subject to damages.  This is also known as the “enveloping atmosphere” rule.  Likewise, that airspace above the “immediate reaches above the land” is part of the public domain, not subject to trespass.   The result was a newly created doctrine articulated to protect landowner rights while giving aircraft the right to fly over private property:

From Causby:

“If the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run. . . . The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.”

The Causby case was a 5th amendment case of taking private property. The finding of the Causby case was that the farmer’s property was “taken” by the government (US Army and Navy) by low flying aircraft in violation of the farmer’s fifth-amendment rights. The “83 ft” was simply an observation by one of the justices and not a finding or legal precedent and not in the scope of the original case.

No federal court has adjudicated airspace ownership.  (If there has been one that escaped my search, please provide the citation).

Causby Held:
1. A servitude has been imposed upon the land for which respondents are entitled to compensation under the Fifth Amendment. Pp. 328 U. S. 260-267.
(a) The common law doctrine that ownership of land extends to the periphery of the universe has no place in the modern world. Pp. 328 U. S. 260-261.
(b) The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain, as declared by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266.
(c) Flights below that altitude are not within the navigable air space which Congress placed within the public domain, even though they are within the path of glide approved by the Civil Aeronautics Authority. Pp. 328 U. S. 263-264.
Flights below that altitude [The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain] are not within the navigable air space which Congress placed within the public domain

 

Aviation Easements

Some people say that they “own the easement” above their property.  This is, again, a badly misunderstood subject.
An avigation easement is a property right acquired from a landowner which protects the use of airspace above a specified height, and imposes limitations on use of the land subject to the easement.

RHV approach

For example, notice the shopping center adjacent to the airport. The owner of the shopping center has an avigation easement that prevents any further development or use of the property. They cannot build up nor can they put a new building in the parking lot. The value of the lost revenue is the basis for the cost of the easement from the FAA and is negotiated at the end of the easement term. Similar to an eminent domain taking, a property owner cannot refuse an avigation easement.
Private avigation easements are exceedingly rare, but they do exist. Mostly in remote locations where an airport abuts private property with tall trees. The avigation easement allows the airport operators to remove or top the trees that could interfere with the use of the airport.
For more information, see: www.irwaonline.org

 

 

 

 

Registration- Hobbyists have won the battle, but will lose the war.

A party atmosphere seems to be going on in the hobbyist community. It’s about to be busted.

So, the FAA has set up a process to de-register your drone and to get your $5 back. Hold on. Don’t be in such a rush to get your precious lucre back from the “evil” FAA. Personal drone registration will happen. It’s just a matter of time.  The agency has said it was “in the process of considering [its] options and response to the decision.” What are the options?

Let’s first look at the problem with the registration rule. Section 336 of the FMRA (FAA Modernization and Reform Act of 2012) was the law that the court used to invalidate the new FAA rule: 14 CFR Part 48, SUAS Registration. Part 48 is a new rule. Had the FAA simply modified Part 47, the existing aircraft registration rule, then the court decision could have gone the other way.

So here’s my prediction- Section 336 will be modified or entirely repealed in the next FAA Authorization bill from Congress due out later this year. When this happens, look for training requirements and certification of hobby pilots as well as registration of their aircraft.

14CFR Part 107, is a new rule that establishes a new category of aircraft (Small UAS) and a new pilot certification (Remote Pilot Certificate With a Small UAS Rating). With a Part 107 pilot certificate, a sUAS pilot may fly for compensation (I.E. “commercial” use). But nowhere, absolutely nowhere in Part 107 rules will you find the word “commercial”.

I think this “omission” was intentional. Except for the Section 336 prohibition, the rules in Part 107 could very easily apply to hobby flight. When Section 336 is altered or repealed, all the FAA needs to do is create yet another pilot rating: “Remote Pilot Certificate With a Recreational Rating”. In short order, hobby pilots will be taking a written exam to obtain the recreational UAS certificate.

Maybe this will also be the time that Brendan Schulman’s (DJI) idea of a micro-UAS class will be taken up by the FAA.

I am already preparing my response to the forthcoming NPRM to also create another new Pilot rating: “Remote Pilot Certificate- Instructor”, and authorize the instructor-rated pilot to administer the written exam. This way a local club with an instructor can administer the exam and issue temporary pilot certificates at a minimal cost. The process would not be unlike the Amateur Radio Volunteer Examiner. The VE can teach ham radio classes and administer the written exam. (The VE can’t issue a station license, so the new ham radio operator has to wait for their license from the FCC to arrive in the mail).

Why am I so confident that this will be the next shoe to drop on hobby pilots?  Just look at all of the reported drone “sightings”.  You know the ones, a pilot is busy landing an aircraft at 175 knots sees a dinner-plate size object a mile away and declares “It’s a drone, we’re all gonna’ die”.  The political pressure is there to “do something”.  And repeal of Section 336 will be easy and politically expedient.

 

Operating near an airport- Part 2

The FAA has released internal orders regarding drone operations near airports.  Here are a few observations on my read of the FAA order.

  1. Notification.
    Part 101 operators are required to notify the airport and ATCT, if one is operational when operating within 5 statute miles of the airport.
    a. When notified of Part 101 operations that pose no hazard:
    (1) Acknowledge the notification.
    (2) Do not use the word “approved” in the communication with the operator.
    b. If the facility determines that the operation would endanger the safety of the national airspace system:
    (1) Deny the operation.
    (2) State the reason for denial.

This doesn’t change the rules that hobby operators have been following, but it does clarify with the tower operators that they are not granting permission, simply acknowledging that there will be UAS operations near the airport.

The order goes further to describe the process for automatic permission for Part 107.  Part 107 pilots need approval, not just notification.  And the towers have not received any instructions on how to approve commercial Part 107 flights in their surface areas, only to say “no”.

As I mentioned in an earlier post, (Air Traffic Organization Policy) the FAA is planning an automated system for Part 107 flight approvals near airports.  About a year ago facilities were told to mark up a map of their area based on their knowledge of local traffic.  What they’re doing is taking slices from their perfect “upside down” wedding cake airspace structures.

Class_E_UASFM-480

It’s a bit difficult to read even on the FAA website, so let’s zoom in a bit:

Class_E_UASFM-CU

Here’s how it’s supposed to work:

Let’s suppose you plan a flight not to exceed 50-ft that will be near the intersection of US 1 and Georgia 23.  Since the tower facility has already determined that UAS flights in that grid up to (not including) 100 ft will not be a hazard to air navigation, your approval will be automatically granted.  The grids, by the way, are 1NM square.  If your flight might create a hazard, say for example that a helicopter-crane will be lifting an air handler on a building in your grid, the facility will contact you to make sure there’s no conflict, or to deny the authorization.

You post your UAS flight into an FAA online form clumsily titled: “Request a Waiver/ Airspace Authorization – Small Unmanned Aircraft System (sUAS)”

The URL is shorter than the title:
https://www.faa.gov/uas/request_waiver/

The form is a bit long, but in most cases the approval will be fast.  If your planned flight meets the predetermined criteria for a safe flight, then permission is automatic and notification to the tower is done.  Just go fly according to your flight plan.

Right now it’s for Class E airspace only; the FAA is testing the system before moving to higher classes of airspace.

For more information, go to the FAA’s FAQ page:
https://www.faa.gov/uas/request_waiver/uas_facility_maps/faq/

 

The battle was won, but the war will be lost.

So, there is dancing in the aisles over the (temporary) defeat of drone registrations.

Yes, Part 48 is a new rule contrary to Section 336.  That was my argument in my response to the FAA when they announced the “emergency” rule with no public comments.

So, now while the combatants celebrate their win, let’s look at what has been set in motion.  Drone registration is not dead, simply asleep.

This decision is fuel to Dianne Feinstein’s bill that would give low-altitude airspace control to local officials.  Imagine how devastating that will be to the commercial drone industry.  My base is Massachusetts.  There are 295 towns and 56 cities in Massachusetts and I shudder to think I will have to license, permit and otherwise comply with 351 different sets of regulations?  That would be business-ending.  Ms. Feinstein’s bill, and it’s growing list of supporters should be raising all kinds of warning flags in the personal drone community, but most drone businesses, let alone hobby drone owners, won’t bother to let their legislators know what they think of this really dumb proposal.

The sentiment behind Feinstein’s bill is an insight into what will happen next when the FAA looks to Congress for another vector into drone regulation.  The solution is so simple- ask Congress to repeal Section 336 and let the FAA regulate hobby flight as any other aviation activity.  Part 107 is structured in a way that would easily allow the FAA to encompass hobby flight.  Not only will we see registration, but pilot certification as well.  Even for hobby use.

In my post from last year: Ever wonder about the words: “remote pilot certificate with a small UAS rating”?, I explained that the FAA does not licence anything (there is one exception), everything they do is through certification.  It appeared to me at the time that the FAA was setting up the pilot certification to be flexible enough to include hobby pilots.

“I fear all we have done is to awaken a sleeping giant.” (Isoroku Yamamoto)
Be careful what you wish for, you may get it.

 

FAA Releases Updated Drone Sighting Reports

“February 23- The Federal Aviation Administration (FAA) today released an updated list of pilot, air traffic controller, law enforcement and citizen reports of potential encounters with unmanned aircraft systems (UAS) – more popularly called “drones”. The latest data cover February through September 2016.”  FAA website

Some reports are of a violation of a regulation, mostly drone flight less than 5 miles from a controlled airport.  But most of the reports are non-events not worth counting.  Unfortunately drone-paranoid will see each of them as an approaching apocalypse.

From the FAA:
“Although the data contain several reports of pilots claiming drone strikes on their aircraft, to date the FAA has not verified any collision between a civil aircraft and a civil drone. Every investigation has found the reported collisions were either birds, impact with other items such as wires and posts, or structural failure not related to colliding with an unmanned aircraft. ”

Below are a sample of non-event sightings.  As before, a large number of reports were of UAS hundreds (and sometimes thousands) of feet from the observer.  I really question the ability of someone who can identify a drone at these distances.

So, now any UFO is a drone?
1/1/2016 11:19 PHOENIX, AZ/UAS INCIDENT, HELICOPTER, REPORTED SEEING A UAS OR SMALL BALLOON AT 1,800 FEET 6 W PHOENIX. NO EVASIVE ACTION TAKEN. UNKN IF LEO WAS NOTIFIED.

It’s a drone, we’re all gonna’ die!!!
1/31/2016 8:00 RESTON, VA/UAS INCIDENT, CIVILIAN REPORTED SEEING A WHITE QUAD-COPTER, APPROX 3-4 FT IN SIZE, ON THE DRIVEWAY OF HIS PRIVATE HOME.

Let’s see…  Drone is at 400 ft and a half-mile from the helicopter, and the pilot can actually see it?
1/30/2016 22:35 MIAMI, FL/UAS INCIDENT, MIA APPROACH ADVISED HELICOPTER, FLYING AT 500 FEET REPORTED A UAS 100 FEET BELOW AND .5 MILE FROM ACFT

Another UFO. Note that it was 2000 ft below the observer.
1/15/2016 0:45 LANCASTER, TX/UAS INCIDENT Summary: Climbing through 15,000 ft on departure reported a drone or balloon, pilot was unsure, approximately 2,000 feet below the aircraft just north of LNC. No evasive action taken.

Yet another UFO, don’t know what it is, so let’s say it was a drone.
1/14/2016 15:40 Summary: HELICOPTER REPORTED A POSSIBLE SIGHTING OF A DRONE 1/4 MILE NE OF MIA AIRPORT. HE SAID IT LOOKED WHITE AND STATIONARY AROUND 400 FT AGL. HE WASN’T 100 % SURE BUT WANTED TO ADVISE ATC. DEN AND MIAMI DADE POLICE WERE NOTIFIED.

Interesting non-event with a UFO.
1/1/2016 19:48 Summary: RECEIVED A REPORT FROM AZU8730 (A332) ABOUT A BALLOON OR POSSIBLE DRONE ON 4 MILE FINAL RWY 17L, . PILOT STATED HE WAS UNSURE WHAT HE SAW. HAD SUBSEQUENT ARRIVALS REPORT ANY ACTIVITY IN THE REPORTED AREA AND RECEIVED NEGATIVE REPORTS. CANNOT CONFIRM DRONE ACTIVITY IN AREA REPORTED.

Another not-a-drone non-event.
12/31/2015 0:00 MIAMI, FL/UAS INCIDENT Summary: THE PILOT REPORTED THAT HE OBSERVED A RADIO CONTROLLED MODEL CESSNA AIRCRAFT THAT WAS WHITE WITH RED STRIPES OPERATING IN HIS VICINITY. HE WAS AT 1400 FEET AND REPORTS THAT THE MODEL AIRCRAFT WAS IN A LOOP UP TO ABOUT 800 FEET. HE TURNED TO THE NORTH TO AVOID THE AIRCRAFT. THE LOCATION HE OVER FLEW IS A KNOWN MODELERS CLUB GRASS STRIP THAT HAS BEEN IN OPERATION FOR MANY YEARS.

Remember “Project Blue Book”? (USAF Archives)
12/22/2015 11:39 ORLANDO, FL/UAS INCIDENT, REPORTED POSSIBLE DRONE/BALLON AT 2600FT ON LOC, ABOVE GLIDE PATH, ON 6 MILE FINAL RUNWAY 17L AT 2,600 FEET. NO EVASIVE ACTION TAKEN. NO DESCRIPTION OF UAS GIVEN. ORANGE COUNTY SHERIFF AVIATION UNIT NOTIFIED.

A drone operating a Mode-C Transponder???
12/20/2015 0:47 BANGOR, ME/UAS INCIDENT,
Summary: WE [ATC] HAD BEEN OBSERVING A MODE C EQUIPPED TARGET OPERATING 7-10 MILES NORTH OF BGR). AT 1750Z HELICOPTER WAS INBOUND TO EASTERN MAINE FROM THE NORTH. NO EVASIVE MANEUVERS WERE NECESSARY. WHEN HE PASSED THE TARGET THE PILOT SAID IT LOOKED LIKE A SMALL WHITE DRONE. THE TARGET THEN LEFT THE AREA CLIMBING TO 2200 (UNVERIFIED) AND APPEARED TO LAND AT THE DOVER, MAINE AIRPORT . SHORTLY BEFORE THIS WE HAD OBSERVED ON RADAR A TARGET DEPARTING THE DOVER AIRPORT THAT APPEARED TO LAND AT THE DEXTER MAINE AIRPORT (1B0). “

It’s a drone, we’re all gonna die!!
12/19/2015 22:00 A/C: N/A
Summary: ANCHORAGE POLICE DEPARTMENT CALLED, ADVISED THAT A CITIZEN REPORTED A DRONE FLYING IN THE POTTER’S MARSH AREA THAT WAS A “HAZARD TO AIR TRAFFIC”. OUTSIDE OF ALL CONTROLLED AIRSPACES.

I wish my eyes were this good.
Date/Time: Dec 13, 2015 – 0100Z, A/C: (BELL 206)
Summary: BELL 206 INBOUND FROM ABOUT 4 MILES NORTHWEST AT ABOUT 1,500 OBSERVED A UAS ABOUT 100-200 FEET ABOVE THE GROUND OVER SANTEE LAKES. CHOPPER 8 ADVISED THE UAS WASN’T A FACTOR FOR THEIR AIRCRAFT. SAN DIEGO SHERIFFS NOTIFIED.

Probably a completely legal photo shoot.
12/12/2015 23:35 COLUMBIA, SC/UAS INCIDENTRICHLAND COUNTY 911 DISPATCH RECEIVED A REPORT OF 6 – 7 UAS IN THE VCNTY BEATTY RD, 10 N CAE.
Summary: CAE RECEIVED A PHONE CALL FROM RICHLAND COUNTY 911. A CITIZEN CALLED 911 AND REPORTED 6-7 DRONES OVER COLUMBIA, SC AND INFORMED 911 TO CALL CAE ATCT. THE DISPATCHER INFORMED CAE THAT THIS ADDRESS IS WHERE THEY ARE BUILDING A NEW WALMART. THERE WERE NO ALTITUDE REPORTS, NO DESCRIPTION OF THE DRONES AND NO DIRECTION OF FLIGHT. DEN AND ATM NOTIFIED.

I don’t know if I would fly with a pilot reporting pink elephants.
10/30/2015 0:00 LIVERMORE, CA/UAS INCIDENT ATCT ADVISED A PILOT CALLED FROM HIS HOME, STATING A PINK UAS WAS ORBITING OVER HIS HOUSE AT APPROX 500-600 FEET, 2.5 ESE OF LVK ARPT. NO ACFT REPORTED SEEING THIS UAS AND UAS WAS NOT VISIBLE FROM TOWER. LIVERMORE PD WAS NOTIFIED

I knew there would be one of these in the report. Damn, that’s a fast drone, and when did Boeing add rear-view mirrors to the 737s?
9/5/2015 4:45 A/C: SWA211 (B737)
Summary: SWA211 STATED [after landing] THAT A DRONE WAS VERY CLOSE TO THEM AROUND 200 FEET AND FOLLOWED THEM IN. THEY LANDED WITHOUT INCIDENT. ERIE COUNTY SHERIFF’S DEPARTMENT ADVISED AS WELL AS THE DEN.

Drone ID Chart